Central Information Commission
Gita Dewan Verma vs Niti Aayog on 28 December, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/NITIA/A/2022/616979
Gita Dewan Verma ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
NITI Aayog, (Governance &
Research Vertical), RTI Cell,
Sansad Marg, New Delhi-110001 .... ितवादीगण /Respondent
Date of Hearing : 13/09/2022
Date of Decision : 16/12/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 27/01/2022
CPIO replied on : 17/02/2022
First appeal filed on : 18/02/2022
First Appellate Authority's order : 17/03/2022
2nd Appeal/Complaint dated : NIL
Information sought:
The Appellant filed an online RTI application dated 27.01.2022 with the Cabinet Secretariat seeking the following information:
A) "Please inform the manner in which the information of the erstwhile Standing Committees of Cabinet on Management of Natural Calamities and on Unique Identification Authority of India has been made public by mandate of first proviso to section 8(1)(i) of the RTI Act and, in particular:1
1. If the information has been made public by Cabinet Secretariat via internet, please provide the exact URL/s.
2. If the Cabinet Secretariat has issued instructions to other Ministries/ Departments to make the Information public old internet, please provide copies of said instructions."
Upon transfer of RTI from the Cabinet Secretariat on 27.01.2022, the Respondent CPIO furnished a reply to the appellant on 17.02.2022 stating as follows:-
"............As far as G & R Vertical of NITI Aayog is concerned, no information is available on the matter, the information may be treated as 'Nil'."
Being dissatisfied, the appellant filed a First Appeal dated 18.02.2022. FAA's order dated 17.03.2022 observed as under:-
(i) "The manner in which the information of the erstwhile Standing Committees of Cabinet on Management of Natural Calamities and on Unique Identification Authority of India has been made public by the Cabinet Secretariat. Appellant has not specified the particular information or what information she desired.
(ii) Being not satisfied with the reply of CPIO, the Appellant has appealed that CPIO ought to take necessary assistance under section 5(4) & (5) to dispose of the matter in accordance with section 7(1) on behalf of all of NITI Aayog.
(iii) NITI Aayog has replaced Planning Commission and commenced its functions w.e.f January 1, 2015. The UIDAI was constituted in January, 2009 as an attached office under aegis of erstwhile Planning Commission. Now MAI is no longer an attached office of the NITI Aayog.
(iv) Assistance has been sought from other Verticals of NITI Aayog to furnish the requisite information sought by the Appellant `Nil' information has been received from the other Verticals.
(v) Further, NITI Aayog is not custodian of records of the Committees under reference. As such information relating to these committee is not available in NITI Aayog."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating as under:
2"(a) Direction u/s 19(8)(a)(iii) to publish the information required u/s 8(1)(i) proviso in respect of CC UIDAI and to also publish and regularly update, in suitable form not inviting the exemption u/s 8(1)(i), bare facts of all Cabinet matters sponsored by it along with the milestone for considering each of them "complete"
or "over" (Ground A);
(b) Direction u/s 19(8)(a)(v) to immediately make provision for training its FAA/s to refrain from making uncalled for observations that CPIO has not made about appellants' requests (Ground B) and for training its Nodal Officer, CPIOs and FAAs to strictly comply with the mandate of section 6(3) so that the transfers that are to be made by NITI Aayog within 5 days of receipt of request are not evaded for several months pending the Commission's directions (Ground C); and
(c) Direction u/s 19(8)(a)(iii) r/w 19(7) to publish the details of what its officers were sensitized /familiarised / educated with for compliance of the Commission's instruction in its Decision dated 24/07/20 in Appeals Nos. CIC/NITIA/A/2018/633093-BJ, /633094-BJ, /633096-BJ & /633097-BJ so that members of the public like myself can frame requests and appeals to match NITI Aayog officials' understanding of RTI Act (Ground D)."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference.
Respondent: Shruti Khanna, Assistant & CPIO (G & R) present through intra-video conference.
The Appellant narrated at length the factual background of the case and her modified prayer in Second Appeal, for better appreciation of the same, the contents of her written submissions dated 05.09.2022 are reproduced hereunder:
"The matter is of request received in NITI Aayog u/s 6(3) from Cabinet Secretariat on 27/01/22. Information sought was of how information related to 2 Cabinet Committees discontinued in 2014 was made public u/s 8(1)(i) proviso and for description of records held. Cabinet Secretariat had made transfers to 4. All had processed u/s 7 and u/s 19(1) and provided NIL responses. The parent request is subject of subsequent substantive Complaint u/s 18 in F. No. CIC/CABST/C/2022/626982.
For Cabinet Committee on UIDAI related issues [CC-UIDAI], transfer was to NITI Aayog as successor of Planning Commission that forwarded CC-UIDAI Notes.3
CPIO provided 'Nil' response for G&R Vertical. 1st appeal request was for NITI Aayog response after process u/s 5(4) because transfer was to NITI Aayog. FAA (G&R) allowed the request and, by order dated 17/03/22, informed assistance was sought and NIL response was received from other Verticals, NITI Aayog is not the custodian of CC-UIDAI records and UIDAI is no longer its attached office.
2nd Appeal was based on FAA's order dated 17/03/22 and reasonable assumptions that subsequent RTI processes have revealed do not hold. I seek to modify my 2nd Appeal prayer, as follows:
1. 2nd Appeal has no prayer for the information (description of records) because I assumed Planning Commission's CC-UIDAI files were transferred, with UIDAI, from NITI Aayog to MEITY. However, MEITY and also UIDAI informed they have no CC-UIDAI related records. It seems that in case of CC-UIDAI the temporary exemption u/s 8(1)(i) has become permanent because CC-UIDAI files have become untraceable. I therefore seek to INSERT the following a-priori prayer-(a) for:
(a) Direction to NITI Aayog Records Officer to locate the Planning Commission's CC-UIDAI files that NITI Aayog inherited and to identify their current custodian.
2. Existing prayer-(a) is for direction u/s 19(8)(a)(iii) to NITI Aayog because I assumed the transfer u/s 6(3) was for NITI Aayog to provide me decision u/s 7(1) because it has to make information public u/s 8(1)(i) proviso. However, Cabinet Secretariat may have used section 6(3) in lieu of section 11. Enclosing FAA's order dated 17/03/22 and MEITY and UIDAI orders, in a further request dated 11/06/22 to Cabinet Secretariat I had sought dates and file numbers of the communications by which Planning Commission forwarded CC- UIDAI Notes to it and for description of its CC-UIDAI records - i.e., for information held exclusively by Cabinet Secretariat - and it transferred u/s 6(3) to NITI Aayog and MEITY on 01/07/22 for "response as they are best placed to consider the request for information on Cabinet matters based on the position if the matter is complete or over". Now my prayer-(a) seems misconceived. Its inherent question modifies to if and how such transfers u/s 6(3) from Cabinet Secretariat are meaningfully processed in NITI Aayog. I therefore seek to SUBSTITUTE in place of existing prayer-(a) the following prayer-(b) for:
(b) Direction to NITI Aayog to produce specimens of its "response" to Cabinet Secretariat transfers u/s 6(3) for it to "consider the request based on the position if the matter is complete or over" that allowed / disallowed disclosure u/s 8(1)(i) proviso (Ground A).4
3. I withdraw, with apology, my ground-B against FAA (G&R). It was based on the assumption that NITI Aayog is to make information public. Ground-C and existing prayer-(b) may be DELETED from this 2nd Appeal, as processing issues are being comprehensively raised in my Appeals arising from Cabinet Secretariat's transfer dated 01/07/22, leaving existing prayer-(c) as it is, i.e., for:
(c) Direction u/s 19(8)(a)(iii) r/w 19(7) to publish the details of what its officers were sensitized / familiarised / educated with for compliance of the Commission's instruction in its Decision dated 24/07/20 in Appeals Nos.
CIC/NITIA/A/2018/633093-BJ, /633094-BJ, /633096-BJ & /633097-BJ so that members of the public like myself can frame requests and appeals to match NITI Aayog officials' understanding of RTI Act (Ground D)"
The CPIO also relied on the contents of her written submissions dated 09.09.2022 stating inter alia as under:
"FAA NITI Aayog vide Order dated 17.03.2022 disposed of Appeal of the Appellant w.r.t to her RTI application dated 27.01.2022 independent of Order of FAA Cabinet Secretariat. Further, NITI Aayog does not have records of the UIDAI. Therefore, NITI Aayog confined its response to RTI based on the material available. The statement of the Appellant that "quarrel with each other about WHO has to discharge it" is factually incorrect. NITI Aayog did not dispute transfer of RTI application dated 27.01.2022.
A1 There is no reference of Cabinet Secretariat FAA's Order in the Appeal dated 18.02.2022 of the Appellant. FAA NITI Aayog confined response to Appeal only. The Appellant contention to dispose of her appeal by taking into consideration the Cabinet Secretariat FAA's Order is tantamount to shifting the goalpost. If the Appellant had desired information w.r.t Cabinet Secretariat FAA's Order she should have filed another application, which she did not. Further, Cabinet Secretariat FAA may have access to Cabinet Note of UIDAI, which NITI Aayog does not have.
A2 Before its establishment as a statutory authority, UIDAI was functioning as an attached office of the then Planning Commission (now NITI Aayog) vide its Gazette Notification No.-A-43011/02/2009-Admn.I dated 28th January 2009 (Annexure 1). As per notification Planning Commission shall be the nodal agency for UIDAI for providing logistics, planning and budgetary support. Thus custodian of records of UIDAI was UlDAI itself. NITI Aayog has replaced Planning Commission and commenced its functions w.e.f January 1, 2015. On 12 September 2015, the 5 Government revised the Allocation of Business Rules to attach the UIDAI to the Department of Electronics & Information Technology (DeitY) of the then Ministry of Communications and Information Technology. UIDAI is no longer an attached office of NITI Aayog and NITI Aayog has no records of UIDAL. Appellant was rightly informed that information relating to this committee is not available in NITI Aayog.
A3 NITI Aayog is not the custodian of records of the Committees under reference. As such information relating to this committee is not available in NITI Aayog. Thus, there is no reason for FAA, NITI Aayog to cite its general norm for disclosure u/s 8(1)(i) proviso in cabinet matters.
D There is no unlawful processing of Appellant's RTI application. As already stated, UIDAI is no longer an attached office of NITI Aayog, therefore any information relating to UIDAI is not available with NITI Aayog.
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9. It is submitted that Appellant in her written submission has stated that 2nd Appeal was based on FAA's order dated 17/03/22 and reasonable assumptions that subsequent RTI processes have revealed do not hold. I seek to modify my 2nd Appeal prayer. It is clear that the modified Prayer is not based on the NITI FAA's Order dated 17/03/22. Notwithstanding, the Appellant has filed the 2nd Appeal against responses of NITI Aayog in respect of her RTI application dated 17.01.2022. Thus, the 2nd Appeal has become infructuous.
9.1 The Appellant in her subsequent RTI application, registered in NITI Aayog on 1.07.2022 had sought information relating to Notes forwarded for the 5 meetings of CC-UIDAI for which press releases are found on the PIB website. The CPI0, NITI Aayog vide reply dated 15.07.2022, inter-alia, informed that press releases of the 5 meetings are available on the PIB website. The information related to the Cabinet Committee Notes and Cabinet Secretariat records related to CC-UIDAI, sought by the appellant is not available.
9.2 No public purpose will be served in locating the Planning Commission's Cc-UIDAI files which NITI Aayog does not possess. From the appeal and modified appeal, it appears that the Appellant is more interested in the process of compliance of RTI application rather than the information she desired to seek."6
Subsequently, the Appellant filed the following rejoinder to the CPIO's submissions on 10.09.2022:
"REJOINDER TO REPLY TO GROUNDS
1. Reply to Grounds A & A1 is wrong and contrived
a) It is incorrect that "The statement of the Appellant that "quarrel with each other about who has to discharge it" is factually incorrect. NITI Aayog did not dispute transfer". NITI Aayog DID dispute transfer. Cabinet Secretariat transferred to NITI Aayog to provide me information of the manner in which CC-UIDAI related information was made public u/s 8(1)(i) proviso via internet or description of CC- UIDAI records and NITI Aayog provided me NIL.
b) That "There is no reference of Cabinet Secretariat FAA's Order in the Appeal dated 18.02.2022" is because that Order was dated 22.02.2022 (i.e., 4 days later). I received it by email on 22.02.2022 and on 22.02.2022 itself conveyed it by email to NITI Aayog FAA, CPIO and Nodal Officer - a fact mentioned also in my Ground A1 under Reply.
c) That "FAA NITI Aayog vide Order dated 17.03.2022 disposed of Appeal ...
independent of Order of FAA Cabinet Secretariat" etc was because he chose to ignore my request in my email that conveyed the Order to him to "Please decide my appeal in light of it". My email is mentioned in Second Appeal para-3 and enclosed as part of 'Copy of First Appeal'.
d) That "The Appellant contention to dispose of her appeal by taking into consideration the Cabinet Secretariat FAA's Order is tantamount to shifting the goalpost" is a remark contrived to shift blame to me for the neglect and failure to duly consider the Order that explained why transfer was made to NITI Aayog.
e) The remark that "If the Appellant had desired information w.r.t Cabinet Secretariat FAA's Order she should have filed another application.... Further, Cabinet Secretariat FAA may have access to Cabinet Note ..." discloses lack of appreciation of the distinction between decisions u/s 7(1) and u/s 19(1), ignorance of the fact that Cabinet Secretariat does (not may) have all Cabinet Notes, and also that NITI Aayog has not comprehended that I desire information about process of making CC-UIDAI information public, not CC-UIDAI Notes.
2. Reply to Ground A2 is false and misleading. It says, "As per notification Planning Commission shall be the nodal agency for UIDAI for providing ... support. Thus custodian of records of UIDAI was UIDAI itself". UIDAI was never listed in Schedule-I of the Allocation of Business Rules. It cannot forward Cabinet Notes. CC-UIDAI Notes originated in Planning Commission files.
73. Reply to Ground A3 is wrong and logically and legally flawed. Reply is to the effect that NITI Aayog does not hold records related to CC-UIDAI and "Thus, there is no reason ...to cite its general norm for disclosure u/s 8(1)(i) proviso". CC- UIDAI is exception, not covered by NITI Aayog's general norm. Exceptions do not govern norms and cannot justify non-disclosure of the norm also because every public authority is mandated u/s 4(1)(b)(iv) of the RTI Act to publish "the norms set by it for the discharge of its functions". My request was for information of process u/s 8(1)(i) proviso. The norm had to be cited to clarify and justify the exception.
4. Reply to Ground D is self-contradicting. It says there was no unlawful processing of my request (received u/s 6(3) to provide information related to CC- UIDAI) and also that no UIDAI information is available. I was informed that in FAA's order. Written submission informs (in reply to ground A2) that UIDAI is attached to MEITY, FAA's order did not. My request should have been processed at the threshold u/s 6(3) either by return-transfer to Cabinet Secretariat or further- transfer to MEITY. It was unlawfully processed u/s 7(1) and u/s 19(1) - despite my email dated 27.01.2022 to request for transfer / transfer back (enclosed with Second Appeal para-1 as part of the document uploaded for 'Copy of RTI Application').
REJOINDER TO PARA-9 COMMENTS
5. Para-9 is wrong. My Appeal u/s 19(3) has to be and is based on the order u/s 19(1) that provided NIL response on behalf of NITI Aayog for Cabinet Secretariat's transfer u/s 6(3). My prayers were based on assumptions that CC- UIDAI records were transferred from NITI Aayog to MEITY with transfer of UIDAI and that Cabinet Secretariat's transfer u/s 6(3) was for purpose meant u/s 6(3). The assumptions did not hold, so I have sought to modify my prayers. FAA's order holds, as does the fact that I have neither been provided nor duly refused the information that I duly requested u/s 6(1). My Appeal is by no means infructuous.
6. Para-9.1 makes no point. It comments on the matter mentioned in para-2 of my written submission, viz., of my request for information held by Cabinet Secretariat (and not by NITI Aayog, MEITY and UIDAI as per orders that I enclosed), which Cabinet Secretariat transferred to NITI Aayog and MEITY on 01.07.2022 for "response" as they are best placed to "consider". CPIO Reply dated 15.07.2022 that is cited in Para-9.1 had NOT "informed that press releases of the 5 meetings are available on the PIB website" (I had cited in my request the dates of 8 six meetings from press release found on PIB website). CPIO had disregarded FAA's order that was part of my request and Cabinet Secretariat's transfer note to provide NIL response for Administration section and make transfers to MEITY and UIDAI and also 2 NITI Aayog CPIOs. This is the reply that inspired me to modify my original prayer (a) to new prayer (b).
7. Para-9.2 is incomprehensible to me. I do not know what "compliance of RTI application" means and wherefrom "public purpose" has come up. The "information she desired to seek" is about process for making CC-UIDAI related information public. It continues to be desired, but is obstructed because Cabinet Secretariat's stand is connected to files in which Notes originated and the files are not with NITI Aayog, not with MEITY and not with UIDAI. The relevant "public purpose" here is of management of public records. CSMOP lays down procedures and lists Cabinet Notes and committee papers among records fit for permanent preservation. The Public Records Act prohibits unauthorised destruction or disposal. Section 4(1)(a) of the RTI Act mandates proper maintenance. The question is not that some other "public purpose" will not be served by NITI Aayog locating them, the question is how Planning Commission files became untraceable in NITI Aayog's care.
xxx.."
Decision:
The Commission at the outset observes that the information sought for in the RTI Application does not conform to Section 2(f) of the RTI Act as it requires the CPIO to deduce and provide their opinion about the supposed availability of the information and to confirm speculative statements. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any 9 electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Further for better understating of the scope and ambit of Section 2(f) of the RTI Act, reference may be had of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], wherein the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) 10 And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) In addition to the above observations, it is pertinent to note that even the grounds of the Second Appeal or the written submissions/rejoinder filed prior to the hearing as well as all of the averments of the Appellant during the hearing are more in the nature of expressing conjecture and adducing the possibilities of finding a record holder or questioning the unavailability of the record of this nature, in a manner that knowingly or unknowingly seeks to mortify the CPIOs without even asking for what is prescribed as "information" in the RTI Act.
As much as the Commission appreciates the cause of the Appellant, it is not in a position to provide for any relief in the matter or to call into question the action/inaction of the CPIO(s) based on their wisdom and understanding of the RTI queries.
Similarly, the Appellant's arguments circled around allocation of business rules; transfer of UIDAI records; that 'UIDAI was never listed in Schedule-I of the Allocation of Business Rules. It cannot forward Cabinet Notes. CC-UIDAI Notes 11 originated in Planning Commission files.'; etc. are not issues that are amenable to the jurisdiction of the Commission under the RTI Act. Here, reference may be had of a judgment of the Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 wherein it has been held as under:
"6. ....proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied) The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) Having observed as above, no action lies in the matter. The Appellant is however advised to pursue the issues raised by her before the appropriate forum.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) 12 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 13